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to $34,101.56, of which $19,575.23 was incurred in the construction of the new hoist to take the place of the one destroyed by fire. At one time during the period that the property was dormant the stock of the Alice Company—incorporated with 400,000 shares, of the par value of $25 each—sold as low as 12 cents a share, and for years was depressed to a very low point. But in 1905 John D. Ryan secured from the holders thereof an option on a majority of the stock at $1.50 a share, being on the basis of $600,000 for the whole property, and in February of the same year made the purchase pursuant to the option.

These further facts, appearing in the record and succinctly stated by counsel, should be mentioned: Prior to the year 1999 a number of independent companies were engaged in mining and smelting copper ore in and near Butte, among them the appellee Anaconda Copper Mining Company, the Washoe Copper Company, the Parrot Silver & Copper Mining Company, the Colorado Mining & Smelting Company, the Boston & Montana Consolidated Copper & Silver Mining Company, and the Butte & Boston Consolidated Mining Company, all of which were large producers of that metal. In the year mentioned the Amalgamated Copper Company was organized as a holding company, with a capital stock of $75,000,000, and it acquired a majority of the stock of the Anaconda and Parrot Companies, and all of the stock of the Washoe and the Colorado Companies, and by 1901 it had acquired a majority of the stock of the Boston & Montana and of the Butte & Boston Companies, increasing its capital stock to make these latter purchases from $75,000,000 to $155,000,000—leaving of the then large copper producing companies in the Butte field only those controlled by F. Augustus Heinze and those owned by W. A. Clark.

At the time of the formation of the Amalgamated Company there was in progress between Heinze and his companies on the one side, and the Boston & Montana and the Butte & Boston on the other, much bitter and costly litigation, which, as soon as the last-named companies became allied with the Amalgamated, involved the latter and all of its constituent companies. In 1905 and 1906 negotiations were entered into between Ryan, the president of the Anaconda and a director of the Amalgamated Company, and Thomas F. Cole, on the one side, and Heinze, on the other, for the settlement of all of the litigation and adverse claims referred to, which negotiations resulted in a final settlement by which Heinze was paid $10,500,000 in cash, in consideration of which all of the properties with which he was associated at Butte were transferred to a corporation organized by Ryan and his associates to take them over, known as the Red Metal Mining Company, all of the stock of which (having a par value of $11,000,000) was immediately acquired by another corporation organized by the same interests to hold it, with a capital stock of $15,000,000, called the Butte Coalition Company, consisting of 1,000,000 shares.

It was while these negotiations were going on that Ryan acquired, under the option that has been mentioned, a majority of the stock of the Alice Gold & Silver Mining Company, which he subsequently turned over to the Butte Coalition Company. Of the Red Metal Company, Thomas F. Cole was president, W. O. Thornton was vice-president, and J. C. Lalor, C. D. Fraser, and James O'Grady were also directors.

Of the Butte Coalition Company, Cole was president, Ryan vice-president, and Urban H. Broughton, James Hoatson, Chester Congdon, B. B. Thayer, F. L. Ames, William B. Dickson, and A. C. Carson also directors; Thayer also being then president of the Amalgamated Company.

About the same time Ryan and his associates also acquired for the same interests all of the properties of Clark, except his Poser and Elm Orlu claims, which latter two claims were located on the Rainbow lode, and not far from the properties of the Alice Company, from both of which claims more or less copper ore has been shipped. The record also shows that a considerable quantity of copper ore has been found in a property at the easterly end of the Rainbow lode, owned by the Butte-Superior Company, which lode had, until these and perhaps other recent discoveries, always been regarded in the Butte district as a silver-bearing lode only.

Very naturally, the discovery of copper ore in commercial quantities in portions of the Rainbow lode is a reasonable basis for at least hope, and, possibly, of just expectations, that like ore may be found upon further exploration in the extensive properties on the same lode of the Alice Company-especially when the various other veins that the evidence shows exist on those properties and cross its portions of the Rainbow lode are considered, together with the known extent and huge production of copper ore in the district. At all events, that prospect, as shown by the record, entered into the estimates of the value of the Alice properties made by the experts on behalf of the appellants; they testifying that the finding of copper ore therein is a geological probability, which probability, as well as their estimates as to values, however, differed very widely from those fixed by similar witnesses of the appellees, who characterized the chance of finding copper ore in the properties of the Alice Company as a geological possibility—the value of the properties, according to the estimates of the former, being from $3,000,000 to $5,000,000; whereas, according to the opinions of the witnesses on behalf of the appellees, they brought by the sale all that they were at the time worth.

[2] The 30,000 shares of the stock of the Anaconda Copper Mining Company, for which the properties of the Alice Company were sold by its board of directors, are claimed by the appellees to have been worth at the time $1,500,000, and are conceded by the appellants to have been then worth $1,250,000, while their then value was found by the court below to have been $1,500,000 plus the amount of the indebtedness of the Alice Company, the aggregate amount of which consideration the court further found was inadequate. With that finding we are of the opinion that, upon the record, we would not be justified in interfering. Taking such to be the fact, we are therefore to consider and determine whether the judgment appealed from can be sustained—which judgment adjudged and decreed the sale in question in all respects valid and binding, and the title to all of the properties of the Alice Company to have passed thereby to the Anaconda Copper Mining Company; there having been shown to the court to have been no bidder at the offer of all of the said properties at a public sale upon

notice published in accordance with a preceding interlocutory decree of the court.

[3-5] We are unable to agree to the contention on the part of the appellants that the properties of the Alice Company, in the condition they were at the time of the sale, and for years theretofore had been, could not be legally sold and conveyed by the directors of the company without the consent of all of its stockholders. We quite agree that the company cannot be regarded as then insolvent, for it owed but $34,101.56, payment of which, so far as appears, was not even being asked, much less urged (by the Butte Coalition Company, which it appears was the creditor), and owned properties for which the Anaconda Copper Mining Company was willing to pay the equivalent of over $1,500,000. At the same time, all of the ores the properties were known to contain that could be worked at a profit had been extracted and disposed of many years before, and the development of other ore therein of commercial value, should such exist, necessarily involved the risking of a large amount of money. The Anaconda Company, no doubt, could afford to take that risk-especially as the evidence shows that the exploration and development of the Alice properties could be made from the workings of some of its own properties—and it is reasonable to suppose that it had sufficient information to justify it in undertaking to do so. But the Alice Company, not only had no money with which to make such explorations and development, but was in debt, which indebtedness was necessarily gradually increasing. Its stock was nonassessable, and therefore its stockholders could not be made to furnish the money essential to any further exploration of its properties. In the course of his testimony, Ryan, the president of the company, said, among other things:

“There had been no operations on the Alice properties excepting leases since 1893. After the Butte Coalition Company acquired control of the stock, there was no change in the operations. The leases were carried on much the same as they had been theretofore; no direct company operation, except taking care oť the property. We could not undertake to carry on any mining operations on the property. We had no money. The company was in debt when we took it 'over, and we had never seen any way of liquidating that debt. It was a nonassessable stock. We could not call on the shareholders for money, and we had no way of carrying on operations. We discussed the matter of borrowing money, offering bonds to the shareholders; but, in looking into the affairs, we could not see where we were justified to ask them for any money. The mine had been worked to a depth of about 1,500 feet, and, even with silver above $1 an ounce, had closed down. No one had ever been able to find a process that would make the zinc ore in the mine commercial, and there has never been known to be any copper in the mine, so we did not see what representations we could make to the shareholders to induce them to put up money to carry on operations."

The fact that the Butte Coalition Company owned 234,000 of the 400,000 shares into which the capital stock of the Alice Company was divided, which 234,000 shares were acquired by the former company from Ryan, and that he acquired them in large part from men also of large means, and that either or all of such owners might themselves have furnished or secured the money necessary for the further development of the properties, is, in our opinion, wholly unimportant. Conceding their ability to have done so, they were not obliged by any rule

of law or equity to do it. The circumstances under which private corporations may sell and dispose by absolute conveyance of all of their property are thus stated in Thompson on Corporations (2d Ed.) 8 2429:

"First. Private corporations, when expressly authorized by statute, charter, or by-laws, may sell and dispose of all the corporate property.

"Second. Private corporations, by the unanimous consent of all stockholders, in the absence of express prohibition, may sell and dispose of all corporate property.

“Third. The directors and managing officers have the power to dispose of all the property, where the governing statute provides that private corporations may sell their entire property.

"Fourth. Where the corporation is in failing circumstances, or is in fact insolvent, the directors and managing officers may dispose of all the property, or make an assignment of all the corporate property for the benefit of creditors.

"Fifth. The majority stockholders may alienate all the corporate property, when expressly authorized by statute, charter, or by-laws.

"Sixth. The majority stockholders, even as against the protest of the minority, may dispose of all the property when the corporate business has become unprofitable, and where it would be ruinous to the corporation and the stockholders to continue the business, or where there are insufficient funds to continue the business and no money with which to pay existing indebtedness, or when the corporation is in failing circumstances, or is in fact insolvent."

The purposes and powers of the Alice Company, as expressly stated in its articles of incorporation, have already been set out. By a statute of Utah enacted in 1905, after conferring certain powers on the corporations of the state, it is further provided :

"And any corporation now existing, or that hereafter may be organized under the laws of this state for the purpose of mining, or the exploration or development of mining property, including lands bearing metal, stones, limestone, oil, petroleum, asphalt, and other hydro-carbons, shall, in addition to the powers abore enumerated, have the power to purchase, take on bond, or lease or in exchange, or locate, or otherwise acquire, any lands, mines, options, territory, fields, or claims, and to sell, convey, lease, bond, mortgage, dispose of, or otherwise deal in the same to such extent as the board of directors may deem prudent, subject always to the provisions of the articles of incorporation and by. laws: Provided, that in case the articles of incorporation do not provide for the sale or other disposition of the property of the corporation, then the act of the board of directors shall not be valid or binding on the corporation until confirmed by a vote of the majority in amount of the stock outstanding, at a meeting of the stockholders duly called to consider such action of the board. When the articles of association provide that the property of the corporation may be sold, mortgaged, or otherwise disposed of by the directors or by the stockholders, sales made in accordance therewith shall be binding on the company.” Section 322, Compiled Statutes 1907.

The board of directors of a private corporation was by the common law authorized to sell or otherwise dispose of the property of the corporation, subject to the limitation that it could not sell or dispose of its entire property. Forrester v. B. & M. Co., 21 Mont. 544, 55 Pac. 229, 353; Thompson's Com. on Corp. vol. 3, p. 2421; Id. vol. 7, p. 8356; Noyes on Intercorporate Relations, $$ 114, 281. By the Utah statute referred to, the powers of all such corporations then existing or that should thereafter be organized under the laws of the state for any of the purposes therein enumerated were manifestly extended beyond the common-law powers, and under its express terms, in view of the charter of the Alice Company, we do not think it admits of doubt that the board of directors of the latter com

pany, in the absence of any fraud or lack of good faith, and with the consent of the majority of its stockholders, was empowered to sell and dispose of all of the property of that corporation.

[6, 7] It is true that at the time the Alice Company was incorporated the above-quoted provision of the Utah statute had not been enacted, but there was then in force a statutory provision of the territory authorizing the amendment, alteration, or repeal of the statute under which the company was incorporated (Comp. Laws Utah 1876, p. 232), which power was subsequently made a part of the fundamental law of the state (section 1, article 12, of the Constitution). Such reserved power, it was held by the Supreme Court of the state in the case of Garey v. St. Joe Mining Co., 32 Utah, 497, 91 Pac. 369, 12 L. R. A. (N. S.) 554, does not extend to an agreement, which the statute had permitted the stockholders of a corporation it had authorized to be incorporated to make among themselves, that its stock should be paid for in full and thereafter be nonassessable. But there was no agreement of that nature in the articles of incorporation of the Alice Company, by which, as has been seen, the corporation was given the general power to buy, lease, hold, own, operate, and sell, mines, mining claims, mills, mill sites, reduction and refining works, and to do all kinds of business incident to, connected with, or convenient for the management of a general mining business.

There is in the powers thus conferred by its charter on the Alice Company no express prohibition against the sale of all of the property of the corporation; nor is there in the case any express agreement either between the corporation and its stockholders, or between the stockholders themselves, that such a conveyance should not be made—the most that.can be claimed in that regard being that a conveyance of all of the property of the corporation might terminate the business of the company and thus defeat the objects of its incorporation; but not necessarily so, for, as said by the Supreme Court of Montana in Forrester v. B. & M. Co., 21 Mont. 544, 559, 55 Pac. 229, 235:

"A transfer or other disposition of all its property will not ipso facto dissolve a corporation, although the practical effect thereof may be to defeat the object of its organization. This is so because ownership or possession of property is not essential to corporate existence. Gans v. Switzer, 9 Mont. 408, 24 Pac, 18; 9 Am, & Eng. Ency. Law (2d' Ed.) 565. A flourishing mining corporation may desire to sell or otherwise dispose of its entire assets for the purpose of reinvesting the proceeds in a new enterprise within the corporate purposes, or of acquiring other mining property. Such sale or other disposition might be made at common law with the unanimous consent of the stockholders, without working a dissolution; nor would a dissolution be produced by the sale or assignment of the whole property of an insolvent corporation made by the direc tors, either with or without the consent thereto of all the stockholders therein."

In Thompson on Corporations, $ 90, it is said:

"The reserve power of the Legislature extends, not only to altering the charter for any purpose connected with the public interests, but also to altering it for the mere purpose of changing the rights of the corporators as among themselves. This view has been taken in New York, in Massachusetts, in Illinois, in Missouri, and in other states. A necessary result of this doctrine is that the Legislature may authorize any change in the organization, purposes, or powers of the corporations which the majority might desire, contrary to the will of the minority."

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